Many concerned about resonance of upcoming ruling

There has long been tension in the gay and lesbian community about the best political path to legalizing same-sex marriage. While some have urged going through the courts, others - thinking the risk of a legal loss too great, too final - have advocated fighting it out state by state at the ballot box.

Yet now, just as same-sex marriage advocates are finally winning marriage rights through ballot measures from Maine to Maryland to Washington, the Supreme Court has agreed to hear arguments on the constitutionality of California's Proposition 8, and decide whether gays and lesbians can wed in California.

Even though many gay advocates say that tension has dissipated as the movement has mostly coalesced around parallel legal-and-political efforts, many are still worried. They're worried about the power and resonance of the upcoming court ruling, which is expected to come before June.

The court also decided to rule on the federal Defense of Marriage Act, the 1996 law that barred federal marital benefits such as joint tax filing, Social Security survivors' payments and immigration sponsorship to same-sex spouses.

"Oh, people are still nervous - there's a risk that the court could go against us," said Rick Jacobs, chair of the Courage Campaign, a statewide pro-same-sex marriage organization at the forefront of the battle. "But people also feel confident too much has changed in this country since Prop. 8," he said.

Not only has public opinion largely swung in favor of same-sex marriage since 52 percent of California voters approved Prop. 8 four years ago, but court decisions on marriage issues have started falling their way, too.

Earlier this year, President Obama became the first sitting president to support same-sex marriage, mirroring the platform of the Democratic Party.

And after losing 32 times at the ballot box, same-sex marriage advocates finally won in four states in November. On that same day, Wisconsin Democrat Tammy Baldwin became the first openly gay U.S. senator-elect in the nation, and Arizona Democrat Kyrsten Sinema became the first openly bisexual member of Congress.

Same-sex marriage is now legal in nine states and the District of Columbia. In another eight states, same-sex couples receive all rights that married couples enjoy - but without their union being blessed by the word "marriage."

"That tension has certainly dissipated some because we're in a different place than we were three years ago," said Jon Davidson, legal director at Lambda Legal, a national gay rights group.

Regardless of which way the court decides on Prop. 8, Douglas NeJaime, a professor of law at Loyola Law School in Los Angeles, believes that it will be narrowly tailored to California.

If the court overturns same-sex marriage, "I don't think it's going to see a sweeping decision that says 'Same-sex couples have no rights under the Constitution,' " said NeJaime, who is an expert on areas involving the law and sexuality.

Restoring Prop. 8 would "be a big loss for same-sex marriage proponents," NeJaime said. "But it would return things to the states and as we've seen on election day, the states are starting to move in the direction" of supporting same-sex marriage.

Should Prop. 8's ban be codified, some advocates like Jacobs feel that the Legislature - two-thirds of which is controlled by Democrats - would put it on the ballot in the fall of 2014.

Others are feeling more confident, given the most recent political wave.

Many advocates didn't always feel that confident - especially not in May 2009, days after attorneys Theodore B. Olson and David Boies - who opposed each other during the 2000 Bush vs. Gore presidential election case - filed suit in federal court on behalf of two same-sex couples who wanted to be married but were denied because of Prop. 8.

In the wake of the filing, nine top gay and civil liberties organizations co-sponsored a political strategy memo called "Why the ballot box and not the courts should be the next step on marriage in California."

"Rather than filing premature lawsuits," the three-page memo read, we "need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong."

But that reticence apparently has lessened - even among some of the co-sponsors of that memo, like Kendall's organization.

She pointed to the all-star legal team of Boies, a Democrat who represented former Vice President Al Gore in the 2000 Supreme Court case that decided the presidency and Olson, a Republican who represented former President George W. Bush.

Together, the pair have more than 80 years of experience between them and Olson has won 75 percent of the 55 cases he has argued before the Supreme Court.

Same-sex marriage opponents, like John Eastman, a professor of law at Chapman University School of Law in Orange (Orange County) and chair of the National Organization for Marriage, "would have preferred that this not land in the courts." Politically, Eastman said, "we have a pretty good record with the voters," noting the 32 ballot box victories for same-sex marriage opponents, a streak of victories that was broken only in November.

Eastman acknowledged that the public opinion "needle has moved a bit" in favor of same-sex marriage.

"But the thing that nobody can predict that whether the movement has peaked or whether it's a trend that will continue going until overwhelming majorities favor same-sex marriage. I don't think that's true."